¶1(Special Concurrence and Partial Dissent).
¶2{120} I specially concur in the Court’s opinion affirming the convictions of the defendant. I dissent from Section 11(H) regarding “Victim Impact Evidence.”
¶3{121} My concurrence in most of the majority’s opinion is special because of my strong personal and philosophical opposition to the death penalty and my strong personal belief that it is based upon a seriously flawed public policy. The reasons I have expressed for my special concurrence in Clark are unchanged.
¶4{122} I dissent from the majority opinion on the admissibility of victim impact evidence in Section 11(H). It is my opinion that this evidence should not have been admitted during the death penalty phase of this ease and that its admission requires a remand to the trial court for a new sentencing hearing.
¶5I. EX POST FACTO
¶6{123} As the majority acknowledges, this defendant was arrested for his crimes in 1994 before the effective date of New Mexico’s victim’s right laws. See N.M. Const. art. II, § 24(C) (1992) (requiring implementing legislation before Victim’s Rights Amendment became effective). A defendant must be given the benefits, as well as suffer the detriments, of the law as it existed and to which he is subject at the time of the offense. The effective date of relevant implementing legislation was January 1, 1995. See 1994 N.M.Laws, ch. 144, § 16 (implementing Victims of Crime Act, NMSA 1978, §§ 31-26-1 to -144 (1994, prior to 1997 amendment)). The majority seems to hold that this defendant should be subject to the full punishment provided by the law, as they hold it now exists, rather than by the law that was applicable when he committed the crime.
¶7{124} I strongly disagree. The New Mexico Constitution provides that, “[n]o act of the legislature shall affect the right or remedy of either party, or change the rules of evidence or procedure, in any pending case.” N.M. Const. art. IV, § 34 (as amended 1960). In 1995 the legislation that implemented the Victim’s Rights Amendment changed the rules of evidence and procedure in the penalty phase of this case while this case was pending. To now affirm the admission of victim impact evidence under Section 31-26-4(G) is a direct violation of Article IV, Section 34, of our Constitution.
¶8{125} Moreover, the admission of victims’ statements to the penalty phase of a murder trial operates to the disadvantage of the defendant. This violates our constitutional prohibitions against ex post facto laws. Article II, Section 19, of our Constitution states, “No ex post facto law ... shall be enacted by the legislature.” See also U.S. Const. art. I, § 10 (same prohibition). The Latin phrase “ex post facto” implicates in its literal meaning any law passed “after the fact.” However, courts have recognized “that the constitutional prohibition on ex post facto laws applies only to penal statutes which disadvantage the offender affected by them.” Collins v. Youngblood, 497 U.S. 37, 41, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990).
¶9{126} Thus, while Allen’s case was pending, the Legislature passed, ex post facto, Section 31-26-4(G), permitting victims to make statements at sentencing. These statutes introduced procedural and evidentiary disadvantages that Allen did not face in 1994 at the time the crime was committed. I strongly believe the application of those statutes to this case violates Article II, Section 19, and Article IV, Section 34, of our Constitution.
¶10II. TESTIMONY IN A DEATH PENALTY CASE
¶11A. The Capital Felony Sentencing Act
¶12{127} More important, it is my opinion that victim impact testimony in a death penalty case is not allowed under New Mexico law as it now exists or as it existed in 1994.
¶13{128} NMSA 1978, § 31-20A-2(A) (1979) of the Capital Felony Sentencing Act provides that:
A. Capital sentencing deliberations shall be guided by the following considerations:
(1) whether aggravating circumstances exist as enumerated in Section 6 [31-20A-5 NMSA 1978] of this act; and
(2) whether mitigating circumstances exist as enumerated in Section 7 [31-201A-6 NMSA 1978] of this act; and
(3) whether other mitigating circumstances exist.
¶14{129} The Act enumerates specific factors that are mitigating, and then expressly states that the enumerated list is not exclusive. It also enumerates specific factors that are aggravating and, unlike the list of mitigating circumstances, that list is exclusive.
¶15{130} The Act is careful to cabin the jury’s analysis of these factors:
After weighing the aggravating circumstances and the mitigating circumstances, weighing them against each other, and considering both the defendant and the crime, the jury or judge shall determine whether the defendant should be sentenced to death or life imprisonment.
¶16Section 31-20A-2(B).
¶17{131} The Act does not require that the jury weigh the aggravating and mitigating circumstances in the abstract; it directs the jury to perform the weighing in the context of both the defendant and the crime. It does not, however, allow the jury to pick additional features of the crime, or facts about the defendant, and weigh them in the balance as additional aggravating factors. Of course, to the extent that the crime or the defendant may present mitigating features, they would be free to weigh those in the balance. The State argues to the contrary when it says that “the defendant’s character and past criminal history are highly relevant and important evidence” in a capital sentencing hearing. However true this might be, if this Court were writing on a blank slate, it is clearly not what the Legislature envisioned when it crafted the Capital Felony Sentencing Act.
¶18{132} The Act enumerates that “the defendant has no significant history of prior criminal activity” as a mitigating circumstance. NMSA 1978, § 31-20A-6(A) (1979). Conspicuously, however, a “significant” history of prior criminal history is not an aggravating circumstance. See NMSA 1978, § 31-10A-5 (1981) (setting out aggravating circumstances). This creates an asymmetry which the State seeks to redress by claiming that prior crimes of the defendant are “relevant” to the jury’s sentencing decision, and that they are admissible in light of the requirement in Section 31-20A-2(B) to consider “both the defendant and the crime.”
¶19{133} The problem with the State’s argument is that while a legislature might determine that a defendant’s prior criminal history is a proper reason, in some circumstances at least, to impose the death penalty, in New Mexico our Legislature has not done so. In contrast, the California Penal Code states, “In the proceedings on the question of [capital] penalty, evidence may be presented ... as to ... any prior felony conviction or convictions whether or not such conviction or convictions involved a crime of violence, the presence or absence of other criminal activity by the defendant which involved the use or attempted use of force or violence____” Cal.Penal Code § 190.3 (West 1999).
¶20{134} It should be noted that even though the Legislature has had several opportunities to amend the Capital Felony Sentencing Act after our Victim’s Rights Amendment was passed and put into effect in January of 1995, it has not done so. The conclusion I reach, therefore, is that the Victim’s Rights Amendment and Act apply to traditional sentencing proceedings, but not death penalty proceedings. The sentence of death is substantially different in that it is final, requiring a specifically tailored scheme. I note that the United States Supreme Court in Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), by a 5-4 vote, held that victim impact evidence is not per se barred by the Eighth Amendment to the United States Constitution. I note also that our statute was written before Payne. Therefore, it is reasonable to assume that our Legislature intended the rule that victim impact evidence is not admissible in death penalty cases in New Mexico. See Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), and South Carolina v. Gathers, 490 U.S. 805, 109 S.Ct. 2207, 104 L.Ed.2d 876 (1989), both overruled by Payne, 501 U.S. at 808-09, 111 S.Ct. 2597. The Legislature made no change in our statute after Payne although it has had many opportunities to do so. Other courts have held that their state death penalty statute, passed during Booth and before Payne, could not have intended to include victim impact evidence as part of a death penalty proceeding. See, e.g., State v. Metz, 131 Or.App. 706, 887 P.2d 795, 801 (1994) (when Oregon’s death penalty statute was enacted, Booth was the law, consequently the legislature could not have envisioned or intended Oregon’s death penalty scheme to permit victim impact evidence); accord, Smith v. State, 919 S.W.2d 96, 102 (Tex.Crim.App.1996), overruled by Mosley v. State, 983 S.W.2d 249, 261-62 (Tex.Crim.App.1998) (relying upon Payne). {135} The Legislature’s complete failure to mention victim impact evidence in the Capital Felony Sentencing Act is understandable. That kind of evidence is, as this case demonstrates, highly passionate and emotional. The Legislature has specifically instructed this Court to hold a death sentence invalid if “the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor.” NMSA 1978, § 31-20A-4(C)(3) (1979). Indeed, the whole point of death penalty sentencing is to objectively channel the jury’s determination of who shall live and who shall die. Zant v. Stephens, 462 U.S. 862, 876-77, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983); State v. Clark, 108 N.M. 288, 308, 772 P.2d 322, 342 (1989), sentence vacated on other grounds by Clark v. Tansy, 118 N.M. 486, 495, 882 P.2d 527, 536 (1994). Every care must be taken so that objective, meaningful distinctions are drawn between who lives and who dies. Passion does not meaningfully distinguish between cases.
¶21{136} The State recognizes the power of victim impact evidence. That is precisely why it fights so hard to introduce it. It is unquestionably powerful emotional evidence that appeals to the sympathies or emotions of the jurors. But the “[e]vidence that serves no purpose other than to appeal to the sympathies or emotions of the jurors has never been considered admissible.” Payne, 501 U.S. at 856-57, 111 S.Ct. 2597 (Stevens, J., dissenting). If our Legislature even considered the admission of victim impact evidence — a highly unlikely possibility because Booth prohibited such evidence at that time — then it is difficult to imagine what the Legislature intended to exclude by invalidating a death sentence imposed under the influence of passion, prejudice, or other arbitrary factor.
¶22B. The purpose of the Capital Felony Sentencing Act is to objectively channel the jury’s determination, not to open death penalty determinations to an emotional free-for-all
¶23{137} Death penalty sentencing statutes that do not meaningfully and objectively channel the jury’s determination are unconstitutional. Zant, 462 U.S. at 875, 103 S.Ct. 2733; State v. Henderson, 109 N.M. 655, 663, 789 P.2d 603, 611 (1990) (because death is the ultimate penalty, jury discretion must be suitably directed and channeled, so that the risk of arbitrary and capricious actions is minimized), overruled on other grounds by Clark v. Tansy, 118 N.M. at 493, 882 P.2d at 534. 'When death is a potential penalty, we require the greatest possible precision in the process. “The penalty of death is qualitatively different from any other sentence,” and consequently the procedures must demonstrate “a greater degree of reliability when the death sentence is imposed.” Lockett v. Ohio, 438 U.S. 586, 603, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); see also Henderson, 109 N.M. at 659, 789 P.2d at 607. Death penalty sentencing procedures cannot allow “a substantial risk that the [death penalty will] be inflicted in an arbitrary and capricious manner.” Lockett, 438 U.S. at 601, 98 S.Ct. 2954 (quoting Gregg v. Georgia, 428 U.S. 153, 188, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)). It “is of vital importance ... that any decision to impose the death sentence be, and appears to be, based on reason rather than caprice or emotion.” Gardner v. Florida, 430 U.S. 349, 357-58, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977).
¶24{138} When highly emotional evidence from bereaved family members is introduced, there is a danger that verdicts become arbitrary and improperly based on passion. A number of state courts have recognized that their statutes do not authorize the admission of victim impact evidence, or that such evidence is not relevant, and should not be a part of rational scheme to channel a jury’s sentencing decision. See generally State v. Atwood, 171 Ariz. 576, 832 P.2d 593 (1992); State v. Carter, 888 P.2d 629 (Utah 1995); Smith, 919 S.W.2d 96; Mack v. State, 650 So.2d 1289, 1324-25 (Miss.1994); Bivins v. State, 642 N.E.2d 928 (Ind.1994).
¶25{139} These cases are consistent with the Payne majority’s holding that the question of whether to admit victim impact evidence is for states to decide. Payne does not hold that states must admit such evidence. “We do not hold today that victim impact evidence must be admitted, or even that it should be admitted. We hold merely that if a State decides to permit consideration of this evidence, ‘the Eighth Amendment erects no per se bar.’ ” Payne, 501 U.S. at 831, 111 S.Ct. 2597 (O’Connor, J., concurring) (quoting majority opinion).
¶26C. Prejudice in this Case
¶27{140} In my view, and contrary to the majority opinion, the victim impact evidence in this case was excessive and warrants a new sentencing .hearing even under the Payne standard. Portions of the victim impact testimony, which, in my opinion, far exceeded the limited testimony tolerable under Payne, follow:
¶28{141} A friend of the Phillips family, Laci Minor, described the family’s efforts to find the missing girl. She related that Darlene Phillips called her the evening that her daughter disappeared, and that, after a sleepless night, she helped Ms. Phillips talk to the police the next day. She described putting up posters as far away as Flagstaff, Prescott, Holbrook, and Phoenix. The prosecutor asked her:
Q: Okay, and how were those — those six weeks of waiting?
A: They were horrible. We — it was just horrible not knowing if she was okay or where she was. Every time the phone rang, we jumped. We — we hoped that she would call or that somebody would call. Darlene tried to follow every lead that she possibly could. She — she talked to people every day. If she had to call them, if she had to go out on the street and would walk around and just talk to people, and carry a picture around and say, “Have you seen this girl?” At one point her and Billy went to' Colorado and talked to a psychic. We— we — we lived every day. We got up every day and we went to work. We slept. But it wasn’t a life, for six weeks.
¶29{142} The State ended by eliciting, in considerable detail, Darlene Phillip’s reaction to the news of her daughter’s death. Ms. Minor received an emergency phone call at work, telling her to meet the Sheriff at the Phillips’ house in 15 minutes. Deputy Cheverie told her, “Now, you have to go in and tell Darlene.”
Q: You were standing with [Deputy] Jim Cheverie outside the house?
A: Yes, sir. And I started walking to the house, and I got about halfway there and I just stopped and I — I said, I can’t. I’m— cannot go in and tell her that her daughter is dead. I cannot do that. So he said he would do it. We went into the house. Darlene had an appointment with Mr. Cheverie at the time, so she didn’t think it was strange that he was there, and she thought that I was there for support because she — because she was going to talk to him and I could have my input. So it wasn’t strange to her that we showed up. We walked in, and she greeted us — her and Bill greeted us, and — and we are smiling and — and instantly she kind of looked at me, and she said “What? What is wrong?” And so Mr. Cheverie told her that they had found Sandra’s body.
Q: How did Darlene react?
A: Probably like any mother would react whenever somebody tells them that their daughter’s body has been found. She—
Q: What did she do to Deputy Cheverie?
A: She started hitting him in the chest, and she started asking him why and who and then she went outside. Darlene ran outside.
Q: Did you follow her?
A: Yes, sir, I did. My sister stayed in the house with Bill, and Mr. Cheverie and I went outside with’ Darlene. And she was — she was running around the driveway, and she was crying. And I would try to — I would try to hug her and touch her, and she would tell me no. And she was yelling and screaming, and the neighbors started coming out of their houses. And I finally got her to go back inside. And she went into the house and she picked up the cordless phone, and handed it to me. And she said, “Now, you have to call Steven [Sandra Phillip’s brother] and tell him that his sister is dead.” So I took the phone outside and I called Steve, and I’m sure that he knew something was wrong instantly when he picked up the phone, because I said, “Steve, this is Laci Minor.” And he said, “What’s wrong?” And I said, “I think you’d better get a plane ticket and get here because Sandy’s been found and she’s dead. And we need you.” And I hung up the phone with him and I just started — I called Darlene’s best friend, Carol Williams, and I asked her to please come as soon as she could because we needed her. I called my parents. I called as many people as I could think of just so that they could help me take care of Darlene and Bill. And then I — we started calling the relatives in Phoenix, and we started — I started making travel arrangements so we could get everybody here. And my sister and I went and got beds and pillows and blankets. My parents and the Williams they went to Sam’s Club and bought food for everybody who was coming. We — the community instantly started bringing things — blankets, beds, tables, food. And later that night I went to the airport and picked up Steve and his grandma and grandpa and his aunt, who had flown in from Phoenix. And I took them home. And instantly Steve got out of the car1 before I even had the car stopped. He was jumping out and he just — he ran in the house, and he grabbed his mom. And we had a — an entire week like that.
Q: How has it been, since the funeral, for Steve?
A: Steve is not a man of open emotions. He’s certainly not going to sit around and tell people how he feels or what he’s gone through since this has happened to him because no matter what has happened to him, and no matter what he feels, it can’t compare to what — what his sister went through on February 7th.
Q: Steve feels like he’s responsible in any way?
A: He feels extremely guilty. The guilt that he feels has almost destroyed him because he’s the one who went to the restaurant and picked up his sister. He was going to bring her home to his mom. And he feels like if he would have never picked her up, she would still be in Phoenix and she’d still be alive. And he feels anger that anybody could possibly do this to his baby sister. Not only did he take away a sister and daughter. He took away grandbabies that Sandy would have given Darlene. He took away an aunt to my children and — and cousins. And I also feel like he took away a very wonderful person who would have been a care giver to our community, who would have given back. She would have been a nurse, she would have been a good nurse, and she would have been taking care of people.
Q: How has Darlene been since the time — since the funeral?
A: Darlene is on a constant roller coaster of emotions. Darlene’s a care giver and she has been for a long time and she is unable, for the first time in her whole life, to care for somebody, who’s herself. Every day she goes to the hospital and she takes care of people who are dying, but she’s dying inside and she can’t take care of herself. Every day people talk about the cures for diseases that they’re trying to find, well I wonder what about the cure for our hearts and our souls and our — the holes that have been put there, and the loss that we suffer. What about a cure for that? How is Darlene supposed to take care of herself now? And take care of other people. She — she kept Darlene’s— excuse me, she kept Sandy’s room exactly how she left it, for the longest time, because she would tell me, Sandy’s going to come home and I want her room to be just like she left it when she comes home.
Q: Is that after the funeral?
A: Yes, sir.
Q: How long did she — did she keep Sandy’s room the way it was?
A: I would say until late summer of this year.
STATE: I have nothing further, Your Honor.
¶30{143} Ms. Minor had also described her friendship with Sandra Phillips, based on their mutual love of cheerleading and animals. She described Sandy’s love of her pet iguana. She described Sandy’s plan for the future:
[S]he discussed with me how she also wanted to be like her mom, and she wanted to be a nurse. So we got really excited because we had this whole plan worked out where we could go to nursing school together and we could take the classes together and we could study together. I mean, it sounds kind of silly, but we were being girls and discussing how neat it would be to hang out together.
¶31{144} In his rebuttal closing at the penalty phase, the prosecutor ended his (rather short) argument with:
This is the stuff that leaves parents in fear for our children and tell them, “Don’t take rides from strangers; don’t accept candy from strangers.” The story of Sandra Phillips is the stuff that we can tell our children or our grandchildren because it is the agony and the horror of every parent.
¶32He talked about Darlene’s anguish:
You saw Darlene as she watched that video, and you must have been watching her facial expressions. And you heard her, when she first testified she ... It was just natural. She stared off into space. God, I miss her. You heard from Laurie — Laci, I’m sorry, what they suffered, and the horror. Darlene going on, beating on Jim Cheverie’s chest; then running around the yard until the neighbors came out. The grieving process is natural to any tragedy especially when young people are involved. Society, I submit to you, has the right to grieve also. I don’t expect of you, nor should I ask of you, to feel what Sandra Phillips felt before she died, that terror; or what the Phillips family suffered after her death. But society has a right to grieve. It has a right to mourn. And it has a right to grieve and mourn by its verdict in this particular case. You have the right to express your indignation of this awful act by your verdict. There’s nothing wrong with the carefully considered expression of community outrage. Indeed, community/society outrage in this case is so, so appropriate. Because that precious thing you saw in that video and that light in her eye can never be replaced. No, but a verdict of death will replace that. Nothing will bring Sandra back; but there is still justice, a verdict of guilty.
¶33{145} Just reading the emotional testimony of Laci Minor is painful. The effect on the jury, who was present in the room when she spoke, is incalculable. The jury was not just a passive observer, it was being asked to do something about the family’s pain: to return a death verdict. In my view, by the terms of the New Mexico Capital Sentencing Act, this inflammatory and emotionally compelling testimony was not admissible. See N.M. Const. art. II, §§ 13, 14, 18; U.S. Const. amends. V, VIII, XIV.
¶34{146} The State’s victim impact evidence was more than a passing glimpse of the victim’s life and the sorrow of survivor. A “dramatic appeal to gut emotion has no place in the courtroom.” Hance v. Zant, 696 F.2d 940, 952 (11th Cir.1983), overruled on other grounds by Brooks v. Kemp, 762 F.2d 1383, 1399 (11th Cir.1985). In my opinion, for the reasons set out above, the State’s presentment of victim impact evidence requires a new sentencing hearing free of unnecessary passion certain to provoke unfair prejudice.
¶35{147} The majority holding otherwise, I respectfully dissent from Section 11(H) of the majority opinion.